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Jonathan Turley on Presidential Abuse of War Powers

Below is the testimony of distinguished legal expert Jonathan Turley, Shapiro Professor of Law at George Washington University, from Senator Rand Paul’s hearing on “War Powers and the Effects of Unauthorized Military Engagements on Federal Spending.”

Professor Turley details the sad history of Congress refusing to do its constitutional duty by providing a check on executive war making, and he explains how the recent Authorization of Military Force, introduced by Senators Bob Corker (R-TN) and Tim Kaine (D-VA), would give the president a blank check to commit U.S. troops anywhere in the world without first obtaining any sort of authorization from Congress.

You can watch the hearing here and see Judge Andrew Napolitano's testimony here. Professor Turley's testimony can be read below or here.

Written Statement
Jonathan Turley
Shapiro Professor of Public Interest Law
The George Washington University

“War Powers and the Effects of vUnauthorized Military Engagements on Federal Spending”

Committee on Homeland Security and Governmental Affairs
Subcommittee on Federal Spending Oversight and Emergency Management
United States Senate
Dirksen Senate Office Building SD-342

June 6, 2018

I. INTRODUCTION

Chairman Paul, Ranking Member Peters, and members of the Subcommittee,

my name is Jonathan Turley and I am a law professor at The George

Washington University, where I hold the J.B. and Maurice C. Shapiro Chair

of Public Interest Law. It is a distinct honor to appear before you today to

discuss one of the most important powers contained in our Constitution: the

declaration of war by the Legislative Branch.

I come to this question as both an academic and a litigator in the field.

My past writings address the separation of powers, war powers, and the

military.1 I am also the former lead counsel for both Democratic and

Republican members in challenging the undeclared war in Libya under the

Obama Administration. My prior litigation also includes representing the

United States House of Representatives in its successful challenge to the

unauthorized use of federal funds in Obamacare. I am admittedly an

unrepentant Madisonian scholar and, as such, I tend to favor a robust and

active role for Congress. I have previously testified against the

encroachment of the Executive Branch and the growing imbalance in our

tripartite system of governance. The rise of an uber presidency has

threatened the stability of our system. Much of this imbalance is due to the

acquiescence of Congress in yielding greater and greater authority to the

Chief Executive. The legislation under consideration today is one of the

most chilling examples of this acquiescence and the danger that it presents

for future generations.

There can be no weightier issue for Congress than the conditions

under which this nation goes to war. The costs of such decisions are real,

immediate, and often catastrophic for many families. If there is a sacred

article in the Constitution, it is Article One, Section Eight. It is not merely a

constitutional but a moral responsibility. Indeed, the words "Congress shall

have power to ... declare War,” fails to capture the moral imperative. It is

not simply a power but rather an obligation that was meant to adhere to

every member upon taking the office of office. Unfortunately, from the

earliest stages of our Republic, members have struggled to avoid the

responsibility for declarations of war. Regrettably, the new Authorization

for the Use of Military Force, S.J. Res. 59, is the inevitable result of this

long history of avoidance. Despite some improvements, the thrust of the

proposed legislation is to give members a statutory shield from their

constitutional obligations over war making.

The new AUMF amounts to a statutory revision of one of the most

defining elements of the United States Constitution. Putting aside the

constitutionality of such a change absent a formal amendment, the proposed

legislation completes a long history of this body abdicating its core

responsibilities over the declaration of war. Indeed, Columbia Professor

Matthew Waxman recently offered what appears to be a collective shrug to

the obvious negation of the original design and intent of the Framers. In

speaking of the lack of a finite period of authorization in this legislation,

Waxman observed that “We’ll be engaged in an indefinite war either way.”2

If anything Waxman was understated. We are engaged in indefinite,

undeclared war – the very menace that the Framers sought to prevent with

1 See, e.g., Jonathan Turley, Madisonian Tectonics: How Form Follows Function in Constitutional and Architectural Interpretation, 83 GEO. WASH. L. REV. 305 (2015); Jonathan Turley, A Fox in the Hedges: Vermeule’s Vision of Optimized Constitutionalism in a Suboptimal World, 82 U. CHI. L. REV. 517 (2015); Jonathan Turley, Recess Appointments in the Age of Regulation, 93 B.U. L. REV. 1523 (2013); Jonathan Turley, The Rise of the Fourth Branch of Government, WASH. POST (May 24, 2013); see also Jonathan Turley, Constitutional Adverse Possession: Recess Appointments and the Role of Historical Practice in Constitutional Interpretation, 2013 WIS. L. REV. 965 (2013); Pax Militaris: The Feres Doctrine and the Retention of Sovereign Immunity in the Military System of Governance, 71 George Washington Law Review 1-90 (2003); The Military Pocket Republic, 97 Northwestern University Law Review 1-134 (2002); Tribunals and Tribulations: The Antithetical Elements of the Military Justice System in a Madisonian Democracy, 70 George Washington Law Review 649-769 (2002).

2 Congress Wrestles With New War On Terror Authorization, NBC News, April 16, 2018.

3 I have previously testified on the impact of narrow (and in my view unwarranted) standing rules that often place glaring unconstitutional acts beyond the reach of judicial review. See, e.g., United States House of Representatives, House Committee on Science, Space, and Technology, “Affirming Congress' Constitutional Oversight Responsibilities: Subpoena Authority and Recourse for Failure to Comply with Lawfully Issued Subpoenas,” September 14, 2016; United States House of Representatives, House Judiciary Committee, Regulatory Reform, Commercial and Antitrust Law, “Examining The Allegations of Misconduct of IRS Commissioner John Koskinen” June 22, 2016; United States Senate, Committee on Homeland Security and Governmental Affairs, “The Administrative State: An Examination of Federal Rulemaking,” April 20, 2016; United States House of Representatives, House Judiciary Committee, Regulatory Reform, Commercial and Antitrust Law, “The Chevron Doctrine: Constitutional and Statutory Questions in Judicial Deference to Agencies,” March 15, 2016; United States Senate, Confirmation Hearing For Attorney General Nominee Loretta Lynch, United States Senate Committee on the Judiciary, January 29, 2015; United States House of Representatives, “Authorization to Initiate Litigation for Actions by the President Inconsistent with His Duties Under the Constitution of The United States” Before the H. Comm. On Rules, 113th Cong., July 16, 2014; United States House of Representatives, “Enforcing the President’s Constitutional Duty to Faithfully Execute the Laws” Before the H. Comm. on the Judiciary, 113th Cong., February 26, 2014; United States House of Representatives, The President's Constitutional Duty to Faithfully Execute the Laws Before the H. Comm. on the Judiciary, 113th Cong., December 2, 2013; United States House of Representatives, Committee on the Judiciary, “Executive Overreach: The President's Unprecedented “Recess” Appointments,” February 15, 2012.

12 An Act More Effectively To Protect The Commerce and Coasts of the United States, ch. 48, 1 Stat. 561 (1798).

13 Id.

14 James Madison, Message to the Senate and House of Representatives (June 1, 1812), in 2 A Compilation of the Messages and Papers of the Presidents 484, 489-90 (James D. Richardson ed., 1897)

15 Letter from President George Washington to Gov. William Moultrie (Aug. 28, 1793), in 33 The Writings of George Washington 73, 73 (John C. Fitzpatrick ed., 1940).

16 The continued failure of self-professed textualists in Congress to follow the language of Article I, Section 8 remains a long-standing glaring and troublesome conflict. I have written about this disconnect for years. See Jonathan Turley, How Presidents Start Wars Military History Magazine (Cover feature story), July/August 2007, at 1; see also Jonathan Turley, Textualists and Originalists Are Again AWOL in Wars on Syria and Yemen, The Hill, April 1, 2017; Jonathan Turley, War – What it is Good For, USA Today, February 15, 2007, at 13A; Jonathan Turley, Can Congress Stop the War?, USA Today, January 18, 2007, at 13A Jonathan Turley, A Check on Wartime Power, The National Law Journal, March 7, 2005, at 34; Jonathan Turley, A War Powers Quandary, The Los Angeles Times, December 21, 2001, at A19; Jonathan Turley, Cries of "War" Stumble Over the Law, The Los Angeles Times, Sept. 13, 2001, at A2l.

17 My testimony focuses on the separation of powers issues and Article 1, Section 8 implications of the new AUMF. There are, however, additional serious flaws in the legislation, including the potential for tremendous abuse in the detention of both citizens and non-citizens. Section 10, entitled “Conforming Amendment,” would by effect expand the scope of the National Defense Authorization Act for Fiscal Year 2012 (NDAA). This includes the NDAA’s controversial indefinite detention provision. There is a real question as to whether the sweeping language of this AUMF in combination if the NDAA could be used to hold citizens indefinitely, though such an abuse would hopefully trigger a challenge in the courts.